Recent Requests : US PTO Litigation Alert™

Amneal Pharma Challenge to Oxymorphone Patents, Among the Requests Week of January 13, 2014

Scott Daniels and Cindy Chen | January 22, 2014

In 2012 Endo Pharmaceuticals sued Amneal Pharmaceuticals for infringement of U.S. Patent Nos. 8,309,122 and 8,329,216 that claim certain controlled-release oxymorphone compositions, i.e., pain relievers.  This past Thursday Amneal replied by requesting inter partes review of both patents (see inter partes review Request Nos. (13) & (14)).  Pharmaceutical patents of other companies as well were attacked last week (see inter partes review Request No. (12) & ex parte reexamination Request No. (5)).

Medical device patents also continue to be targeted at the Patent Office.  Inter partes review requests were filed against a knee arthroplasty patent owned by Wright Medical,  and a shape memory alloy stent patent owned by Medtronic (see inter partes review Request Nos. (10) & (17)).  In both instances, the requester had been sued for infringement.

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Toshiba Attack on Intellectual Ventures IC Patents, Among the Requests Week of December 30, 2013

Scott Daniels, Cindy Chen and Jerome Bushnell | January 6, 2014

This past March, Intellectual Ventures I and II sued Toshiba for infringement of ten circuits patents, most of them related to memory.  This past week, Toshiba requested inter partes review of two of those ten patents, U.S. Patent Nos. 5,687,132 and 7,836,371 (see inter partes review Requests No. (2) & (9)).  The ‘132 patent claims “multiple-bank memories and systems” and the ‘371 patent claims an integrated circuit for “testing and debugging of electronic systems, and, in particular, to on-chip circuits for the test and diagnosis of problems in an integrated circuit.” Toshiba has previously requested inter partes review of two other IV patents (IPR2014-00113, and -00201), and will likely be filing further requests against the other six remaining patents, as well.

Apple filed two petitions for inter partes review of a Rensselaer Polytechnic Institute patent (see inter partes review Request No. (10)). RPI’s patent relates “to user interfaces … that recognize natural language.”  Apple asks that these new requests be joined with previously filed request IPR2014-00077. RPI has sued Apple for infringement of the patent. 
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TRW Challenges 10 Car Headlight Patents, among the Requests Week of December 16, 2013

Scott Daniels, Cindy Chen and Jerome Bushnell | December 23, 2013

Over a two-day period, TRW requested inter partes review of 10 Magna Electronics patents, filing two requests against three of those patents (see inter partes review Request Nos. (2) and (4) through (15)).  The patents all relate to systems for controlling automobile headlights.  Magna has sued TRW for infringement of the patents in the Western District of Michigan.

Subaru, Toyota and Ford each requested inter partes review of U.S. Patent No. 6,324,463 that claims a “system for indicating the operational status and parameters of a cruise control system for use in a human operated vehicle” (see inter partes review Request Nos. (24), (25) & (26)).  The owner of the ‘463 patent, Cruise Control Technologies, has sued 15 car companies for infringement.  Each of the three Requests proposes distinct prior art rejections of the claims.  These filings follow Cruise Control’s amendment of the ‘463 claims in late October in a pending ex parte reexamination.

And Netflix filed requests against four OpenTV patents (see inter partes review Request Nos. (2), (16), (18) & (23)), Ford against two TMC Fuel Injection patents (see inter partes review Request Nos. (21 & (22)), and Apple against a WhitServe patent (see inter partes review Request No. (17)).
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Cisco Seeks Inter Partes Review of Networks Patent, Requests Filed the Week of December 9, 2013

Scott Daniels, Cindy Chen and Jerome Bushnell | December 16, 2013

Cisco petitioned for inter partes review of U.S. Patent No. 7,724,879 which claims a method for determining “the availability of a called party before placing a communication from the calling party to the called party” (see inter partes review Request No. (5)).  The ‘879 patent is owned by AIP Acquisition who has sued several large cable companies for infringement.  The ‘879 patent is also the subject of a pending inter partes review, IPR2013-00296, filed by Level 3 Communications and instituted by the APJs on October 31, 2013.

The following inter partes review requests were filed:

  1. IPR2014-00243 (electronically filed) – U.S. Patent No. 7,303,992 entitled COPPER ELECTRODEPOSITION IN MICROELECTRONICS, which is owned by Enthone Inc.  Filed by Moses Lake Industries, Inc. on December 10, 2013.  The ‘992 patent is asserted in the patent infringement action styled Enthone Inc. v. Moses Lake Industries, Inc.(Case No. 1:13-cv-1054-TJM-RFT (N.D.N.Y.)).
  2. IPR2014-00244 (electronically filed) – U.S. Patent No. 5,793,302 entitled METHOD FOR SECURING INFORMATION RELEVANT TO A TRANSACTION, which is owned by Leon Stambler.  Filed by Fifth Third Bank on December 9, 2013.  The ‘302 patent is asserted in the patent infringement action styled Leon Stambler v. Fifth Third Bancorp and Fifth Third Bank (Case No. 2:12-cv-675-JRG (E.D. Tex.).  The Federal Reserve had previously petitioned for inter partes review of the ‘302 patent in IPR2013-00341 and IPT2013-00409, to which the present request raises identical issues; and as well the Federal Reserve had previously challenged the other patent at issue in the infringement litigation, U.S. Patent  No. 5,936,541, in IPR2013-00344 and IPR2013-00406.
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Fifty-Three Patents Challenged, Week of December 2, 2013

Scott Daniels and Cindy Chen | December 9, 2013

The number of new patent challenges continues to accelerate – last week saw thirty-two requests for inter partes review, three for post-grant review, and eighteen for ex parte reexamination.  Most notably, Apple, either alone or with one or more co-requesters, attacked six patents owned by either Arendi, THX, or VirnetX (see inter partes review Request Nos. (1), (4), (5), (25), (26), & (28)).  In each instance, Apple is being sued for infringement of the respective patent now being challenged.  Apple was also the target of an anonymous 180-page request for ex parte reexamination (see ex parte Request No. (7)) against its U.S. Patent No. 8,463,238 claiming a mobile device base station.

There is also an increasing pattern of companies filing joint requests.  For instance, Samsung, LG and HTC teamed up to request inter partes review of two content delivery patents owned by Affinity Labs of Texas (see inter partes review Request Nos. (6) & (8)).

Toshiba Samsung Storage requested inter partes review of two LG recording media patents (see inter partes review Request Nos. (2) & (3)).  The companies are involved in an infringement action in Delaware.
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RPX Seeks Inter Partes Review of Data Management Patent, Week of November 11, 2013

Scott Daniels and Cindy Chen | November 18, 2013

Since 2011 MacroSolve has filed suit in the Eastern District of Texas against 67 retail, financial, and social media companies – among them American Express, Bank of America, Chipotle, Comcast, Dropbox, Facebook, Home Box Office, Pandora Media, and United Airlines,– for infringement of its U.S. Patent No. 7,822,816.  The ‘816 patent states that in one embodiment, it claims a method for collecting “survey data and making the responses to the survey available to a client in virtually real time over the Internet.”  Last week RPX, who has not been sued, requested inter partes review of the ‘816 patent (see inter partes review Request No. (5)).

RPX is a patent-holding company that assists other companies in resisting infringement allegations.  RPX explains that it uses “capital from annual subscription fees [from clients] to acquire dangerous patents and patent rights, with each RPX client receiving a license to every asset we own. We acquire those patents for defensive purposes, and we have committed to never assert these patents. As the network continues to grow and our service offerings expand, we are removing progressively more high-threat patents – and more high-cost risk – from the operating ecosystem.”  RPX’s business model evidently also includes challenges at the Patent Office to the validity of adverse patents.

Bank of America and PNC Financial each requested post-grant review of four Intellectual Ventures patents related to Internet commerce (see covered business method post-grant review Request Nos. (1) through (4)).  Each of the four petitions relies entirely on allegations that the patents claim mere abstractions that are patent-ineligible under 35 U.S.C. § 101.  Six other post-grant review petitions were filed.


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Omega-3 Composition Claims Challenged, Week of November 4, 2013

Scott Daniels and Cindy Chen | November 13, 2013

Aker BioMarine AS has requested inter partes review of a patent claiming capsules that contain “an Antarctic krill oil extract” comprising specification phospholipids, the phospholipids including DHA and APA essential fatty acids derived from fish (see inter partes review Request No. (5)). the owner of the patent, Neptune Techs. & Bioressources, has sued Aker for infringement, both in Delaware District Court and at the U.S. International Trade Commission.

The steady stream of requests for post-grant review of covered business method patents continued last week with four new petitions.  The invalidity grounds asserted go beyond the anticipation and obviousness allegations to which inter partes review requests are limited – two of last week’s CBM petitions included assertions that the claims were invalid under 35 U.S.C. § 101 because they recited only abstract ideas, and two others included assertions of indefiniteness under 35 U.S.C. § 112.

Two patent owners – Honeywell and ThermoLife – requested ex parte reexamination of their own patents (see ex parte Request Nos. (3) & (5)).  Although this was common in the early years of reexamination, it is somewhat unusual today.


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Apotex Tests Wyeth Anti-Bacterial Composition Patent, Week of October 28, 2013

Scott Daniels and Cindy Chen | November 4, 2013

Most notable among the filings last week was an inter partes review request submitted by Sughrue’s Kenneth Burchfiel and Travis Ribar, on behalf of Apotex, against Wyeth’s U.S Patent No. 7,879,828 (see inter partes review Request No. (8)). The ‘828 patent claims a tigecycline composition having “improved stability in both solid and solution states.”  According to the ‘828 patent, tigecycline is an antibiotic in the tetracycline family that “has been shown to work where other antibiotics have failed.”  Wyeth sued Sandoz in 2009 for infringement of both the ‘828 patent and Reissue Patent No. 40,188, but the case was later dismissed based on a stipulation of the parties.

Medtronic filed two inter partes review requests against a patent for an aortic valve replacement owned by Troy Norred (see inter partes review Request No. (4)). Dr. Norred sued Medtronic for infringement of the patent earlier this year.  Medtronic also requested inter partes review of a stent patent owned by Valentine Rhodes (see inter partes review Request No. (1)).


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Apple, Twitter & Facebook Target Computer Query Patents, Week of October 21, 2013

Scott Daniels | October 28, 2013

Late last year, Evolutionary Intelligence began a series of actions against the who’s-who of American social media companies, notably Apple, Facebook, Foursquare Labs, Groupon, Living Social, Millennial Media, Sprint Nextel, Twitter, and Yelp, accusing them of infringing two patents that claim systems and methods for searching for information on a computer.  Last week, Apple struck back, filing two requests for inter partes review of one of the patents, and four requests against the other (see inter partes review Request Nos. (4) & (6)).  Such multiple requests against a single patent have become a preferred tactic for companies like Apple to overcome the PTO’s 60-page limit on requests.  Facebook and Twitter filed their requests against one of Evolutionary’s patents (see inter partes review Request Nos. (12) & (13)).  It is quite likely that the Patent Office will consolidate these matters.

Veeam Software was the leader, at least in terms of the number of patents challenged, filing inter partes requests against four Symantec patents (see inter partes review Request Nos. (8) to (11)).  Symantec has sued Veeam for infringement of the patents.

And the enthusiasm for seeking post-grant review against business method patents claiming financial systems continued last week with four new requests (see post-grant review Request Nos. (1) to (4)). 
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Petitions for Post-Grant Review of Six “Covered Business Method Patents” Filed, Week of October 14, 2013

Scott Daniels and Cindy Chen | October 22, 2013

The number of requests for post-grant review of covered business method patents was slow at first, but has picked up steam of late, to the point that last week there were more such requests than requests for inter partes review.  Most notably, a collection of companies, lead by Apple, requested post-grant review of four patents related to “information management and synchronous communications system and method for generation of computerized menus for restaurants” (see post-grant review Request Nos. (2) to (5)).  The owner of the patents, Ameranth, has sued Apple and an assortment of restaurateurs for infringement.  Practitioners will be interested to note that none of the proposed grounds for rejection are based on patents or printed publications, rather the challenges are based on §§ 101 and 112.

Electronic Frontier Foundation, that describes itself as “a donor-supported membership organization working to protect fundamental rights regardless of technology,” requested inter partes review of a media content dissemination patent owned by Personal Audio (see inter partes Request No. (1)).  Quite a number of media companies have been sued in the Eastern District of Texas for infringement of the patent.

Finally, the knock-down-drag-battle between NuVasive and Medtronic escalated last week with the latter filing two more requests for inter partes review (see inter partes review Request Nos. ((2) & (4)).


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